Patna High Court
Mostt. Pramila Devi, Etc. vs State Of Bihar And Ors. on 25 May, 2000
Equivalent citations: 2000(3)BLJR1783
JUDGMENT Radha Mohan Prasad, J.
1. As in both these writ petitions the question involved is common, with consent of the parties, they have been heard together and are being disposed of by this common judgment/order.
2. In both these writ petitions, the petitioners are widows of Headmaster and Assistant Teacher respectively. Husband of the petitioner in the first case (C.W.J.C. No. 8122 of 1998) died in harness on 26.1.1973 while posted in Primary School, Jagaidih, Ahchal Banka West in the district of Banka and the husband of the petitioner in the second case (C.W.J.C. No. 9018 of 1999) was an Assistant Teacher in Government Middle School, Lari, under Kurtha Police Station from where he superannuated on 30.11.1974 and subsequently, died on 25th August, 1980. both the Schools were initially a Non-Government Middle/Primary School under the control of respective District Boards of Bhagalpur and Gaya. Said Schools were taken over by the State Government with effect from 1.1.1971, vide the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976. The claim of the petitioners in both the writ petitions is that they are entitled to family pension since after the death of their husband, who retired/died from the Schools which were taken over by the State Government with effect from 1.1.1971 and thus became Government servants since that date.
3. The case of the respondents is that the Government resolved to take over all Non-Government Primary Schools, vide Government Resolution No. 763 dated 9.2.1973 with effect from 1.1.1971 and thereafter, vide notification dated 31.12.1976 of Take-Over Act, all Non-Government Middle/Primary Schools were taken over by the Government. Photo copies of the Government resolution and Government notification have been annexed as Annexures A and A/1 respectively to the counter-affidavit filed on behalf of respondent No. 4 in the first case. According to them, retirement benefits of the teachers were decided to be considered separately, which is evident from last part of Government resolution No. 763 dated 9.2.1973 (Annexure-A). The State Government, vide letter No 1069 dated 23.6.1977, issued by the Finance Department, Bihar, Patna, decided that the family of only those teachers who have retired or died on or after 1.4.1976 are entitled for family Pension and of those teachers who retired or died prior to 1.4.1976 are entitled for Triple Benefit Scheme. Photo copy of the said letter dated 23.6.1977 has been annexed as Anhexure-B. It is contended that admittedly, the husband of the petitioner died on 26.1.1973, i.e., much before the said Scheme of family pension was implemented with effect from 1.4.1976. As such, the petitioner is only entitled for Triple Benefit Scheme and not entitled for family pension. The respondents have also pleaded that there has been delay and laches on the part of the petitioner which also disentitles her from getting any relief from this Court. In the second case, the husband of the petitioner Superannuated on 30.11.74 after attaining the age of 62 years. As such, according to the respondents, he was entitled to the benefit under Triple Benefit Scheme and was accordingly granted pension, vide P.F.O. No TBS 2225 under the said Scheme. The said Scheme does not provide for payment of family pension.
4. The question which falls for consideration thus is as to whether the petitioners whose husbands were teaching staff in the Middle/Primary Schools, which were taken over by the said 1976 Act from a retrospective date i.e., with effect from 1.1.1971, can claim family pension since after the death/retirement of their husbands before the enactment of 1976 Take Over Act.
5. Learned Counsel for the petitioners submitted that the said question does not require any further consideration as the law in this regard has already been settled by this Court in the case of Smt Sharda Devi v. State of Bihar and Ors. reported in 1996 (2) PLJR 470, and several subsequent decisions, including the one in the case of Lalita Devi v. State of Bihar reported in 1999 (3) PLJR 236, in which this Court also explained the Division Bench judgment in the case of Sona Devi v. State of Bihar and Ors. reported in 1998 (1) PLJR 668, in which, however, it was held that the dependants of the teachers retired prior to 1.4.1976 are not entitled for family pension.
6. Learned State Counsel appearing for the respondents submitted that it is true that in the case of Lalita Devi v. State of Bihar (supra) this Court has examined the question regarding admissibility of family pension to the dependants of such teachers who died before 1976 Act was enacted, vide notification dated 31.12.1976, but this Court did not examine the provisions and effect of the said provisions of the Take Over Act, 1976. Learned State Counsel submitted that Section 3 of 1976 Act provides for take over of different categories of Non-Government Elementary Schools by the State Government and Section 4 provides for the consequences of taking over. Under Section 3, Elementary Schools managed by the District Board, Zila Parishad, the Municipal Board and the Patna Municipal Corporation and those opened under the Expansion and Improvement scheme were deemed to have been taken over by the State Government with effect from 1st day of January, 1971. The second category deals with Aided Elementary Schools, the Managing Committees of which handed over voluntarily the control of the school to the Government in which the schools were to be taken over by the State Government with effect from the date to be determined by the District Committee referred to in Sub-section (4) for this purpose. Elementary Schools administered by any public or private undertakings were to be taken over by the State Government by publication of a notification in the official Gazette with effect from the date to be specified therein and with regard to the taking over of the schools other than those which fall in the category of 1 and 3 under Sub-Sections (1) and (3), there was a District Committee in each district for examining the feasibility of taking over of such schools by the State Government. The Committees with respect to this category and category 2 were to consist of (i) Deputy Development Commissioner/Administrator, District Board-Chairman (ii) District Superintendent of Education-Secretary, Members, District Education Officer, District Inspector of Schools, Sub-divisional Education Officer of the concerned subdivision and Deputy Inspector of Schools concerned. The State Government were empowered to make changes from time to time in the personnel of the District Committees so constituted. Under Section 4 all the assets and properties whether movable or immovable owned or possessed by the schools taken over by the State Government under Section 3 including lands, buildings, documents, books and registers relating to the schools were to stand transferred to and were deemed to have come into the possession and ownerships the State Government and under Sub-section (2) of Section 4 every officer, teacher or other employee holding any office or post in the school taken over by the State Government were deemed to have been transferred to and become an officer, teacher or employee of State Government with such designation as the State Government may determine and were to hold office by the same tenure, at the same remuneration and on the terms and conditions of service as he would have held before the taking over of the said school and shall continue, to do unless and until such tenure remuneration, terms and conditions of service are duly altered by the State Government.
7. It is submitted that in the present case, we are concerned with the Schools falling in the first category which by virtue of the enforcement of the Act were deemed to have been taken over by the State Government with effect from 1st day of January, 1971, but, according to the learned State Counsel, under Sub-section (2) of Section 4 services of only those Officers, teacher or other employee were deemed to have been transferred to and become an officer, teacher or employee of the State Government who were holding any office or post in the school taken over and not who had already died or retired before the take over. It was further submitted that as per Sub-section (2), their service conditions were to be governed by the same tenure at the same remuneration and on the terms and conditions of service as he would have held before the talking over of the school and were to continue unless and until such tenure remuneration, terms and conditions of service are duly altered by the State Government.
8. In the instant case, the husbands of the petitioners retired/died much before the enactment of 1976 Act and, thus, they were not holding any office on the date of enactment of 1976 Act by virtue of which the Schools in question were deemed to have been taken over by the State Government with effect from 1st January, 1971. As such, according to the learned State Counsel, the service of such teachers cannot be held to have been transferred to and become an officer, teacher or employee of the State Government with such designation who were, in fact, holding such office or post in the School on the date of enactment of 1976 Act. Moreover, the terms and conditions of services of such employees of the taken over school were to be governed by the same tenure at the same remuneration, etc. as he would have held before the taking over of the said school unless and until the same are duly altered by the State Government, which, in fact, was altered with respect to grant of pensionary benefits, vide Government letter dated 23.6.1977 (Annexure-B to the counter-affidavit in the first case). It was submitted that the petitioners' husbands till death were entitled or drawing pension, etc. under the Triple Benefit Scheme and not under the Family Pension Scheme, 1964 as the said benefit was made available to teachers who retired or died on or after 1.4.1976 vide said Annexure-B. Moreover, 1964 Scheme was applicable to family of deceased Government servants and the husbands of the petitioners were not Government servants till their death.
9. Learned Counsel for the petitioners, on the other hand, submitted that the said question has been considered in the case of Sharda Devi v. State of Bihar and Lalita Devi v. State of Bihar (supra). The husbands of the petitioners were very much in service in the respective Schools on the effective date of take over, i.e., 1.1.1971 and thus, by virtue of take over of their Schools under Section 3, they are deemed to be the employees of the State Government with effect from 1.1.1971 as there was no further formalities required to be completed. It was by virtue of the Take Over Act itself that they became Government servants with effect from the date of take over, i.e., 1.1.1971 and thus, they cannot be denied of the benefit which was available to Government servant as on the date of their death. It has further been submitted that in fact, the process of take over had already started before the death of the husbands of the petitioners, vide Government resolution dated 9.2.1973, contained in Annexure-A, where by the Council of Ministers decided to take over all Non-Government Middle/Primary Schools with effect from 1.1.1971 and to treat regular teachers working in such schools as Government servants and the same was later brought into effect by enactment of 1976 Act. As such, according to the learned Counsel, the petitioners cannot be denied of the benefit of family pension which was admissible to the members of the family of the Government servants only because of the delay caused in the matter of enactment of 1976 Act.
10. This Court finds substance in the said submission of the earned Counsel for the petitioners. In fact, 1976 Act though was notified on 31st December, 1976, but by virtue of Sub-Section (3) of Section 1, the said Act is deemed to have come into force with effect from the first day of January, 1971. Thus, the effective date of take-over of such schools which were covered by category 1 and 3 and for whom the District Committee is not required to examine the feasibility of taking over of such schools by the State Government will be 1.1.1971, i.e. with effect from the date when 1976 Act is deemed to have come into force under Sub-section (3) of Section 1 of the said Act. The effective date in the case of schools covered by other category may vary as it is dependent upon the determination by the District Committee or publication of the notification by the State Government in the Official Gazette specifying the effective date, but not in the case covered by 1st category mentioned in Section 3(1) of the Act. Under Sub-section (2) of Section 4 every officer, teacher or other employee holding any office or post in the school on the date of take-over, i.e., 1.1.1971 shall be deemed to have been transferred to and become an officer, teacher or employee of the State Government with such designation as the State Government may determine. By virtue of Sub-section (2) of Section 4, it is true that they are to hold office by the same tenure, at the same remuneration and on the same terms and conditions of service as they would have held before the taking-over of the said school and were to continue to do so unless and until the same are duly altered by the State Government which obviously in the present case stood altered in the matter of grant of family pension under 1964 Scheme which is applicable to the dependants of all Government servants and any other interpretation would be arbitrary and violative of Articles 14 and 16(1) of the Constitution.
11. In the case of Smt Sharda Devi v. State of Bihar (supra), this Court noticed the facts that the family pension scheme for the State Government employees was introduced by the State Government vide Finance Department Memo No. Pen-103/64-9505 F, dated 3rd September, 1964 (wrongly typed as Memo No. Pen-103/64/95/9505/Fl dated 3rd September, 1954), and on consideration of the provisions contained therein directed for payment of family pension to her. The Division Bench in the case of Sona Devi v. State of Bihar (supra)only considered the question as to whether for the purpose of family pension, the Respondent-State can fix a cut-off date or not. The said question arose because of the plea of the respondents that the petitioner was entitled to the benefit under triple benefit scheme which existed at the time when her husband died and she was not entitled for family pension. It was further pleaded on behalf of the respondents that the husband of the petitioner was entitled to triple benefit of Provident Fund, Gratuity and Pension under the rules as then existed on the date of the death of her husband. The family pension was introduced by the State of Bihar for the first time on 7th June, 1976, which provided that those teachers, who retired or died prior to 31st March, 1976 shall be entitled for the benefit under the triple benefit scheme, but those who retired after 31st March, 1976 shall be governed by the Bihar Pension Rules. However, the relevant provisions dealing with family pension scheme introduced by the State Government including one contained in the aforementioned Finance Department Memo No. Pen-103/64-9505 F dated 3rd September, 1964 were not placed and as such it appears that the Division Bench declined to express any opinion on the claim of the family pension under 1964 Rules.
12. Thus, this Court in paragraph 7 of the decision in the case of Lalita Devi v. State of Bihar (supra) has elaborately considered the decision of the State Government which reviewed its earlier decision at the instance of the Government of India and drew up afresh scheme which provided for grant of pension for life to the widow of deceased Government servant and held that the 1977 instruction cannot sustain the test of reasonableness and the principles governing Articles 14 and 16 read with Articles 38, 39 and 41 of the Constitution of India inasmuch as by fixing a cut-off dated under 1977 instruction would amount to arbitrarily denying the benefit available to the family of the teachers under the existing scheme of 1964 and thereby acting to their detriment. It was further held that admittedly the husband of the petitioners of the two writ petitions died in harness much after 1.1.1971, which is the effective date of take over of the school by the Government by virtue of which the teachers and employees of the schools became Government servant and thus, they cannot be differentiated in the matter of grant of pensionary benefits by issuing executive instruction.
13. Admittedly, the husband of the petitioner in the second case retired on 30.11.1974 and later died on 25th August, 1980 and in the first case the husband of the petitioner died in harness on 26.1.1973 i.e. much after the effective date of take-over, i.e., 1.1.1971 by virtue of which they became Government servants under 1976 Act and thus, in my opinion, the petitioners cannot be differentiated in the matter of grant of pensionary benefits under the garb of executive instructions issued in the year 1977.
14. The writ petitions are, therefore, allowed. The Secretary-cum-Commissioner, Department of Primary, Secondary and Adult Education, Bihar, Patna is directed to take immediate steps for release of family pension and other pensionary benefits of the petitioners with up to date statutory interest after making necessary adjustments of the amount already paid under the Triple Benefit Scheme within two weeks of the receipt/production of a copy of this judgment/order, failing which he shall not draw his salary and other allowances till the order is fully complied. However, in the facts and circumstances, there shall be no order as to costs.